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'Fighting Sioux' Case Considered by North Dakota Supreme Court

North Dakota's Supreme Court grilled the state Board of Higher Education's lawyer Thursday about the board's tardiness in challenging a law that requires the University of North Dakota's sports teams to carry the Fighting Sioux nickname.

North Dakota's Supreme Court grilled the state Board of Higher Education's lawyer Thursday about the board's tardiness in challenging a law that requires the University of North Dakota's sports teams to carry the Fighting Sioux nickname.

State lawmakers first approved the pro-nickname law in March 2011. Yet it wasn't until last month, after the law was repealed and then revived in a referendum campaign, that the higher education board sued to block the law, Justice Daniel Crothers said.

"That harm has been there since the statute was passed almost a year ago ... Why now? Why in the face of a referral?" Crothers asked Douglas Bahr, an assistant attorney general who is representing the board, during Supreme Court oral arguments Thursday.

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Secretary of State Al Jaeger scheduled a June 12 referendum on the law after nickname backers turned in more than 16,000 petition signatures demanding a ballot.

The law says UND's sports teams must be known as the Fighting Sioux and keep a separate logo that depicts the profile of an American Indian warrior.

NCAA officials have told UND that as long as the nickname and logo are kept, the Grand Forks school may not host NCAA post-season tournaments. Its teams, cheerleaders and band members may not wear them on uniforms during post-season play.

The Board of Higher Education contends the law interferes with its own powers, granted under the North Dakota Constitution, to manage the state's 11 public colleges. The board wants the Supreme Court to declare the law unconstitutional and take the referendum off the ballot.

Crothers and Justices Carol Ronning Kapsner and Mary Muehlen Maring questioned whether waiting for the June vote would harm UND. The election will let voters decide whether the law should be kept or repealed.

Bahr said the board delayed legal action because state legislators wanted to see whether the law would cause the NCAA to rethink its opposition to UND's nickname and logo. It did not. The NCAA considers both offensive to American Indians.

The pro-nickname referendum campaign has required the board "to backtrack, and have its authority infringed and all the issues re-raised," Bahr said.

The problems the law causes "may go away in three months," Bahr added. "But the board should not have to suffer this injury for three months."

Bahr and lawyers for Jaeger, the Legislature and the pro-nickname referendum committee took turns making their arguments Thursday during an hour-long Supreme Court session. Chief Justice Gerald VandeWalle said the court will make its ruling later.

The justices also peppered Patrick Durick, a Bismarck attorney representing the Legislature, and Reed Soderstrom, a Minot lawyer who was chairman of the referendum campaign, about assertions in their own arguments.

Durick argued that the nickname and logo, and protecting their monetary value, are part of the university's work, which he said the state constitution allows the Legislature to regulate.

VandeWalle said Durick's contention was so broad that it "would consume the constitutional authority of the board, if the Legislature wanted to do it."

Justice Dale Sandstrom asked whether the Legislature could use Durick's argument to set class schedules, decide which professors may teach certain courses, and specify the colors and designs of the teams' uniforms.

"I don't know a bright-line test. I'm here to tell you that (the Legislature) can decide what the nickname of the athletic program is," Durick replied.

He said the Board of Higher Education had presented nothing but "bare allegations" that the university had been harmed by keeping the nickname.

"I think there needs to be some evidence," Durick said. "You've got to either have (a sworn statement), or you've got to do something."

The NCAA's logo-related penalties were on display last Saturday, when the University of Minnesota's women's hockey team beat UND 5-1 in Minneapolis during the quarterfinals of the women's college hockey playoffs.

The tournament's program did not carry a photo of the UND team, because the women were wearing Fighting Sioux jerseys when it was taken. The team took the ice wearing jerseys without the nickname or logo, with an interlocking "ND" featured instead.